Custody

Custody of children is one of the most important matters that must be decided by
parents when they separate or divorce.

Many options are available as the previous traditional concept of family life has
changed dramatically in recent years.  Often Mothers are the primary caretaker
of the children, but now many fathers are playing an expanded role in their
children’s lives and taking on more of the nurturing aspects of child rearing, while
mothers face the demands of working outside of the home.

Understandably, the realities of modern family life have brought changes in
custody and visitation arrangements.  One option is joint legal custody (decision
making) with the primary residence with one parent and visitation to the other.
Another alternative is shared custody, where both parents have legal and physical
custody and the children spend part of the time in each home.  Today, as parents
seek more creative approaches to the demands of post-separation custody, a
wide variety of options are available.  An experienced family law attorney can help
develop options that fit your unique scenario.

Do People Actually Divorce in their Sixties, Seventies, and Eighties?

Couples who have been married for many years face new challenges in life 

as they move through their senior years. People in their sixties and even 

seventies and eighties can be wrestling with how to make their lives more 

comfortable and what to do about their marriages.

Sometimes a person who has stayed in a bad marriage for many years 
decides he or she doesn't want to spend their remaining years that way. 
Sometimes good marriages change or a difficult marriage gets more difficult 
as age and health bring personality changes that are hard to handle 24 hours 
a day or that give rise to safety concerns. Sometimes the problems are 
exacerbated by alcohol abuse, depression, or other physical or mental health
problems including Alzheimers, dementia, or other illnesses that can affect 
mental acuity or personality.

Older or disabled persons may have special income issues involving health 
insurance, social security, or retirement benefits. Spousal support can be an 
issue. Guardianship may be appropriate in some cases. Adult children from 
this marriage or from a prior marriage may complicate matters or may be an 
excellent resource. Wills, trusts, powers of attorney, and advanced medical 
directives are important parts of the equation. Instead of just worrying about
these things, consult with an experienced family law attorney to help you.

Talking these problems over with an experienced family lawyer can help. It 
is important to consider financial issues, safety issues, emotional issues, and 
practical matters that are unique to your own situation. Sometimes it is better 
to stay together despite the problems, but to make certain changes that manage 
the problems better. Sometimes it is best to live apart, but stay legally married. 
Sometimes divorce is necessary and appropriate. Each person's situation is 
unique, and you may need help to sort out your options.

Protecting Your Rights in Divorce

Couples in a well-functioning marriage work together as a team and rely on each other for help, comfort, mutual problem-solving, and enjoyment.

When a marriage breaks down or gets on shaky ground, each person begins to lose trust in the other and in the relationship and starts to think in terms of protecting himself or herself.  This is because in a separation or divorce, the same kind of sharing can’t continue as it did when the couple was a unit. Major decisions will have to be made about the home, the support and care of the children, the support of a dependent spouse, and any retirement accounts or other assets, which may advantage one person and disadvantage the other. The parties’ interests are not the same when it comes to a separation or divorce, but rather, each has a separate interest to protect.

When you are separating or divorcing, or when that seems like it could be a possibility, it is important for you to start learning about the law and about the processes available.  You need to know what decisions get made, how they are made, and how that can affect you and your children.  You need to understand your rights and the various ways of protecting them.

It is natural that there will be conflict when spouses are separating, as their own personal interests differ from each other. This does not have to mean that you can’t work on those differences in a cooperative way, while still protecting your rights.  If you are able to do that, you both will save a lot of stress and money.

Protective Orders

October is domestic violence month and as family law attorneys we see too many cases of domestic violence.  Domestic violence can occur against men and women. The Courts have set up three levels of protective orders in an attempt to put safeguards in place for those cases where allegations of threats or acts of family harm are substantiated.  Domestic violence can occur against men and women.  An emergency protective can be granted for a period of 72 hours; a preliminary protective order can be granted for a period of two weeks; and a protective order can be granted for up to two years.  Protective orders can award remedies that include a "stay away" provision, exclusive use and possession of a residence, exclusive use and possession of a vehicle, payment of utilities.

Inheritance - Separate or Part of the Pot?

In the last blog we talked about property division and the concept of "marital
property". As mentioned, there are exceptions to the presumption that assets
acquired during a marriage are marital and subject to division. One such
exception may be an inheritance. An inheritance that is received from a source
other than the other spouse is presumed to be separate and not subject to
division. In a marriage, however, we often see spouses who have combined
an inheritance with joint or marital investment accounts, bank accounts or
other financial assets. This is normal where marriages are partnerships and
work together. However, in the event of a separation or divorce, if the
inheritance has been commingled in this fashion, it may have changed the
separate nature of that inheritance to a marital asset or a combination of both
separate and marital assets and may be subject to division. Experienced family
law attorneys can help you assess the classification of an inheritance and can
help you understand the legal issues involved and ways that funds mixed with
marital monies mayor may not be able to be traced back to their separate origins.

Property Division

Marriages give a couple an opportunity to accumulate wealth and build a secure future if they manage their money well and plan carefully. When separation and divorce occur, property and debts have to be divided appropriately between the marriage partners either by agreement or by the courts, and each person must proceed through life with less than the total financial package he or she had expected to have if the marriage had continued.

The division of assets and debts can have a long-lasting effect on each member of the family and must be done carefully. The law in Virginia governing property division in divorce is called “Equitable Distribution”. It provides for assets and debts that are the fruits of the marriage to be divided fairly.  This division can be done by agreement or  by a judge based on evidence produced by the parties and based on statutory factors if the parties cannot agree on the division.

Regardless of how an asset is titled, if it was acquired during the marriage, it is presumed to be marital and considered in equitable distribution. This means that even if a house or vehicle or retirement account is in one party’s name and not the other and is not jointly titled, the value of that asset still comes into play in equitable distribution.  Some exceptions do exist, and it is important to make an analysis of what there is, whether it is marital or separate or hybrid, what it is worth, whether there are any liens, how it is titled and possessed and what should happen to it.

Marital debts, like assets, need to be divided.  They can be split any way the parties agree. If the parties cannot agree, a Court apportions the debt. If there is a lien on the property being divided, the debt will be taken into account when dividing the asset.  It is important to know whose name(s) the debt is in and to consider whether that debt should be assumed or refinanced or if the asset should be sold and the lien paid off.

Consulting with an experienced family law attorney can help you better understand what will be treated as marital and will help you formulate options in dividing a marital estate.

Making Initial Financial Decisions When A Separation Occurs

One of the hardest problems facing each person when a couple separates is how to handle the finances until everything can be resolved.  This is called the pendente lite stage.  Both short and long-term decisions will be required, and many decisions are inter-related.

Short-term decisions include:

       * Where will each person live and what will it cost?
       * Who will be responsible for bills and expenses?
       * Will the couple continue to have joint bank accounts and joint
          credit cards, and for how long?
       * Will a homemaker wife have to seek any immediate full or
          part-time employment?
       * Will there be any payments of child support?  Spousal support?
       * Who gets to use what assets until things are finalized?
       * Who collects the income from investments?
       * Can either person sell or dispose of assets?
       * Can either person withdraw funds from any existing equity line?
       * Will there be any changes in standard of living?  If so, what?

These decisions set the tone for more permanent arrangements.

A good family law attorney can help you work out appropriate pendent lite (temporary) arrangements if your spouse will cooperate in trying to arrive at a fair arrangement.  If, however, your spouse acts arbitrarily and unfairly, you will need to take prompt steps to protect yourself, as things that happened at the temporary stage can have a dramatic impact on any final settlement or award.  Select a family law attorney at a very early stage to help you through this process.  Be sure the attorney you choose will help you explore all avenues of possible settlement, and will empower you to understand your options for making informed decisions for yourself.